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Judgment
Rohit Arya, J.—By this writ petition under Article 226 of the Constitution of India petitioner has approached this Court for the relief in the form of writ of the nature of mandamus or direction to respondents to pay compensation to the petitioner at the rate of Rs. 2,00,000/- per annum for three years from 2009 to 2012 with interest at the rate of 12% per annum.
The aforesaid relief is claimed in the background of facts that the petitioner was a student in Gyan Ganga Sanskrit School. He appeared in 10th Board examination in the year 2008. Though he appeared in the practical examination for Science subject, but was declared absent. Accordingly, the mark-sheet was issued to him showing him absent in the said practical examination for Science subject. As a result, petitioner was not declared successful and was required to take supplementary examination in Science subject. Petitioner made a protracted correspondence with the respondents and asserted that he did appear in the practical examination for Science subject. There was no justification to show him absent and, therefore, the same be verified with the record and he be issued fresh mark-sheet. Having received no positive response, petitioner filed writ petition No. 5476/2009 before this Court with the prayer of the nature of direction to respondent No. 1 to issue a fresh mark-sheet showing the practical marks accorded to the petitioner. There was no prayer for any compensation in that writ petition. This Court while disposing of the writ petition No. 5476/2009 has observed that the assertion of the petitioner that he appeared in the practical examination for Science subject was admitted by respondent No. 3 in the counter affidavit, however, respondent No. 1 maintained the stand that it never received the marks awarded to the petitioner in the practical examination, therefore, he was shown as absent. Under such circumstances, this Court directed respondent No. 3 to verify and if marks were already not sent to respondent No. 1, the same be sent within a period of fifteen days from the date of production of copy of the order and if marks were already sent, then proof thereof be provided to respondent No. 1. Thereafter, respondent No. 1 was directed to act in accordance with law and issue appropriate revised mark-sheet by treating the petitioner as present in the said practical examination by assigning appropriate marks to the petitioner in the practical examination for Science subject. Though liberty was sought to claim damages in appropriate proceedings, but in absence of any relief in that behalf petitioner was left free to avail the remedy if available under the law. Accordingly, the writ petition was allowed to the said extent.
It appears that revised mark-sheet was issued to the petitioner on 7/12/2012. Thereafter, petitioner has filed the instant writ petition for award of compensation to the petitioner as referred above.
Respondents No. 1, 2 and 3 have filed separate counter affidavits.
Respondent No. 3 contended that after the judgment was rendered on 5/7/2012 in writ petition No. 5476/2009 it had sent the letter on 3/8/2012 to respondent No. 1 with the information that marks of practical examination of the petitioner were already sent to respondent No. 1 and thereafter another letter was issued on 3/11/2012 by respondent No. 1 for conducting re-practical examination of both the petitioners of writ petition No. 5476/2009, namely, Prashant Sharma and Rishi Godiyale. Again correspondence took place between respondents No. 3 and 1 to ascertain as to whether practical examination was to be conducted only in respect of Prashant Sharma or both as there are two petitioners in writ petition No. 5476/2009 and since the name of Rishi Godiyale; another writ petitioner, was not mentioned, guidance was sought by letter dated 5/11/2012. Respondent No. 1 vide communication dated 6/11/2012 directed respondent No. 3 to conduct practical examination of both petitioners, i.e. Prashant Sharma and Rishi Godiyale, and thereafter practical examination was conducted, wherein both petitioners of writ petition No. 5476/2009 appeared on 20/11/2012 and marks were sent to respondent No. 1 on 22/11/2012. Under such circumstances, it is submitted that respondent No. 3 is not responsible for the delay caused in issuance of revised mark-sheet.
Respondent No. 2 has filed counter affidavit and submitted that respondent No. 2 is not responsible for incorrect mark-sheet issued to the petitioner, as practical examination was conducted by respondent No. 3 on the directions of respondent No. 1. That apart, it is submitted that looking to the averments made in the petition and nature of relief claimed, in fact disputed questions of facts are involved in this petition, which require adjudication by a fact finding body, therefore, extraordinary constitutional jurisdiction of this Court cannot be invoked for the said purpose. With the aforesaid pleadings, it was prayed that the writ petition be dismissed.
Respondent No. 1 filed counter affidavit and submitted that in the counter affidavit filed before this Court in writ petition No. 5476/2009 it was specifically stated that there was no documentary evidence on record that the marks of the petitioner were ever sent to the Board. As marks obtained by the petitioner in practical examination were not sent, therefore, the mark-sheet prepared by respondent No. 1 indicated that the petitioner did not appear in the practical examination. If the concerning school where the petitioner had taken the practical examination had sent the second copy of the marks obtained, then the Board would have had not difficulty to issue the mark-sheet showing marks in the practical examination, but that was not done. Besides, it is also submitted that the mark-sheet was issued in the year 2008 and petitioner was well aware of this fact that he has to appear in supplementary examination, still he filed the writ petition on 16/11/2009 i.e. after about one year, with no explanation whatsoever. That apart, there was no relief for damages or compensation for non-issuance of mark-sheet on the allegation that though he appeared in the practical examination for Science subject, but mark-sheet was issued showing him absent in the practical examination, in the earlier round of litigation. Therefore, filing of instant petition claiming compensation or damages deserves dismissal at the very threshold.
It is further contended that in the earlier writ petition respondent No. 1 has categorically stated that there was no conclusive evidence on record to demonstrate that the practical examination marks of the petitioner were sent to the Board and even this Court while disposing of the writ petition had directed respondent No. 3 to reverify and if marks were not already sent to respondent No. 1, the same shall be sent within fifteen days from the date of production of the order passed or if the marks were sent, then respondent No. 1 shall issue proper revised mark-sheet. But, as marks were not sent, the occasion for issuance of revised mark-sheet did not arise. No proof was submitted by respondent No. 3 much less satisfactory proof at any point of time that the marks were sent to the Board. Therefore, direction was issued to give re-practical examination to the petitioner and one another student, namely, Rishi Godiyale. Learned counsel for respondent No. 1 referred to Annexure R/1, R/2 and R/3 in this regard. Thereafter, after the result of practical examination was received, respondent No. 1 vide Annexure R/4 prepared fresh mark-sheet, Annexure R/5, of the petitioner and the same was issued on 24/12/2012 to him.
With the aforesaid submissions, it is prayed that respondent No. 1 cannot be held responsible for delayed issuance of mark-sheet, as no sooner petitioner appeared in the re-practical examination and marks were sent to the Board, mark-sheet was issued to the petitioner. That apart, respondent No. 1 has also in detail dealt with the facts and circumstances to demonstrate that the Board was since in not receipt of the marks of the practical examination, therefore, mark-sheet was not issued and it cannot be held responsible for the same; para 3 of the counter affidavit. So much so respondent No. 1 has also tried to comment upon conflicting stand of respondent No. 3 in his correspondence in the said paragraph.
Learned counsel for petitioner has relied on the order of the Division Bench of this Court in Writ Appeal No. 160/2013 dated 8/4/2013 in support of his submissions as regards claim of damages.
After having perused the order, in the opinion of this Court, the facts in hand are clearly distinguishable as aforesaid order was passed in the peculiar facts and circumstances involved in the case, wherein this Court found that the Board on its own showing after detecting the mistake committed had issued the supplementary mark-sheet with 100 out of 100 marks in the Mathematics subject to the respondent/student though she was required to appear in the supplementary examination rejecting her application for revaluation. As such, the Board itself had rectified its mistake and extended what was due to the respondent/student at a later stage. Hence, the aforesaid order is of no assistance to the petitioner.
Considering the conflicting stands of petitioner, respondent No. 1 and respondent No. 3 in the context of the relief claimed by the petitioner in the form of award of damages or compensation for delayed issuance of mark-sheet of Class 10th, in the opinion of this Court, extraordinary constitutional jurisdiction under Article 226 of the Constitution of India cannot be invoked for an enquiry based on factual adjudication of dispute raised by respondents No. 1 and 3 in support of their respective stands as discussed above. However, petitioner is at liberty to institute appropriate proceedings in accordance with law before a forum competent to address upon factual disputes and record a finding thereon. Judgment rendered in the case of Rabindra Nath Ghosal Vs. University of Calcutta and Others, AIR 2002 SC 3560 : (2002) 7 JT 490 : (2002) 7 SCALE 137 : (2002) 7 SCC 478 : (2002) 2 SCR 698 Supp : (2002) 4 SCT 442 : (2002) 2 UJ 1425 is referred to.
Accordingly, the writ petition is bereft of merits. Dismissed.